The Yes on Measure S campaign and Berkeley Democratic Club (BDC), founded in 1934, are facing serious questions about alleged violations of state and local campaign finance laws. On July 12, 2013, the Berkeley Fair Campaign Practices Commission (FCPC) received a complaint against BDC alleging violations of the Berkeley Election Reform Act (BERA) and state election law, including failure to file expense reports for false and misleading campaign materials that were distributed by homeless people during the November 2012 election cycle.

The BDC Political Action Committee spent a total of $26,781 in the November 2012 election cycle to produce a Berkeley-wide mailer and literature to be distributed at the polls, according to California filing records. While the BDC filed with the California Secretary of State, it failed to file with the City of Berkeley Clerk’s Office, as is required by BERA. A search of campaign filings in Berkeley shows that, despite actively expending funds in the last several election cycles, the BDC stopped filing with the City after August of 2010 and began filing under much looser requirements with the State of California.

The BDC was an avid proponent of the measure (Measure S) that would have criminalized sitting on a city sidewalk. The measure failed to pass. In campaigning for Measure S, the BDC paid for and distributed campaign literature that falsely claimed to be the “official endorsements of the Democratic Party.” In fact, the Alameda County Democratic Party did not support Measure S. In several instances, the BDC also endorsed candidates that competed with those actually endorsed by the Democratic Party. BDC’s false and misleading literature prompted a letter of reprimand from the Alameda County Democratic Central Committee.

Written testimony that will be presented at the meeting shows that on Election Day the BDC hired numerous homeless or formerly homeless people to pass out their fraudulent literature at polling places in Berkeley. Many if not all of the homeless people passing out the campaign materials were current or former clients of a Berkeley drug and alcohol treatment center, Options Recovery Services, Inc. Eyewitness accounts state that Dr. Davida Coady, the Medical Director of Options and a spokesperson for the Measure S campaign, recruited the clients and John Caner, the CEO of the Downtown Berkeley Association, coordinated the distribution efforts. The testimony further noted that these clients were paid between $50 and $100 in cash by Mr. Caner to participate in election-day activities, but these payments were not disclosed to the city or state. Cash payments of over $50 are prohibited under BERA.

“Hiring the homeless clients of a recovery program to campaign for their own criminalization is the opposite of harm reduction. Berkeley’s vulnerable populations deserve better,” said Patricia Wall, director of Berkeley’s Homeless Action Center.

Yes on S’s and BDC’s failure to report its expenses – namely, printing false and misleading campaign literature and paying homeless people to distribute said literature – effectively kept from public view who gave money to the committee and BDC or how they spent that money. Either group’s violations could result in substantial fines and penalties from the FCPC. Concurrently, the Associated Students of the University of California Senate is considering a bill denouncing their groups’ tactics in the 2012 election.

Berkeley’s Deputy City Attorney Kristy van Herick, in a staff memorandum to the commission, writes that “[The Yes on S Committee] has acknowledged the cash payments and filing errors or omissions, and has filed an amended Form 460 statement. However, the cash expenditures cannot be corrected through an amendment. BERA's restrictions against cash expenditures have been in place since 1974 ... Even if the committee had not been aware of the BERA limitation, most of the cash expenditures also violated state law's restriction against cash expenditures of $100 or more.”

The 2012 election in Berkeley saw an unprecedented amount of money infiltrate numerous local campaigns, largely from political action committees and corporate interests. Earlier this year, the Fair Campaigns Practices Commission issued the second largest fine in Berkeley history against the landlord-backed, so-called Tenants United for Fairness (TUFF) Slate Mailer Organization (SMO). Recently, the California Fair Political Practices Commission issued a warning letter to the East Bay Rental Housing Association PAC for failure to disclose an expenditure of $12,000 in support of the TUFF SMO. The Berkeley Democratic Club was the only Democratic organization in Alameda County to endorse Measure S and the TUFF Rent Board slate.